Explaining parents’ rights to request an education, health and care plan for their child
What’s the point in requesting an education, health and care (EHC) plan? It’s just too difficult to get one, isn’t it? These questions are posed on a regular basis by parents of children and young people with SEN. Parents are keen to get provision in place for their children but are confused about the mixed messages they receive. Parents are often informed by other parents who have experienced challenges, or by the school or the local authority (LA), that an EHC plan isn’t needed or that their child just won’t be given one.
Where a child has (or may have) SEN or a disability and might require provision for that need in the classroom or at other times during a school day, that school doesn’t usually provide, it is advisable to request an assessment to find out if they need a plan. This will ensure that the child or young person’s needs have been fully considered, and provision has been noted for all of those needs.
What does the law say?
The legal cases cited below illustrate some of the rights parents have in regard to statements of SEN and the EHC plans which are being phased in to supersede them.
In the case of Manchester CC v JW  ELR 304 the question of when it might be “necessary” for a statement of SEN to be issued was considered. It was recognised that this could include the situation where the school or LA simply didn’t understand what special educational provision was needed and would not make that provision.
Once a plan is in place, there is a legal duty upon the LA to ensure that the provision in the EHC plan is made. Failure to do so would be unlawful. So, when children are moving between classes or schools, or their teaching assistant leaves, or the headteacher changes, the EHC plan ensures the child’s provision continues.
Where a plan is not in place, parents are reliant solely on the school to continue to provide the provision required by their child’s SEN, and have limited recourse if provision does not continue.
The case of MC v Somerset CC  UKUT 0461 (AAC) also considered the question of why a child might need a statement (and an assessment in order to access such a statement). The Upper Tribunal accepted that they might need this “to access the relevant provision or open the door to the enforceability of rights via s.324(5)”. The same reasoning should apply to the need for an EHC plan.
Getting an EHC plan
So how can a parent go about requesting an EHC plan? A request needs to be made in writing to the LA. The LA has a clear duty to assess a child or young person’s education, health and care needs where they have or may have SEN and they may need special educational provision to be made for them under an EHC plan. This is called an EHC needs assessment.
This is sometimes called a “statutory assessment” – an assessment that the LA is required to carry out in accordance with statute, in this case the Children and Families Act 2014. It has replaced the old form of statutory assessment under the Education Act 1996.
The request to assess can be made by the school or the parent or young person. Parents often query whether, if the request is not made by the school, it will have a detrimental impact upon the application. The answer to this is simply “no”.
The LA must thereafter apply the legal test as noted in s.36 (8) of the Children and Families Act 2014. The test is that the LA must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that:
- The child or young person has or may have special educational needs, and
- It may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
The test is therefore very simple: does the child have, or could the child have, SEN and might provision be necessary under a plan.
Don’t be put off
There are a number of common misconceptions about when children will be considered for an EHC assessment. Parents are often told that their child must be two terms behind other children in their class, or that the school must have spent £6,000 on them before an assessment will be carried out. They might also be told that their child won’t get a plan, that the school must request the assessment or that the parents must try all the school’s suggestions first before a plan will be considered. The law is clear, though. The test is the two-part test above; no other points need be satisfied.
If a parent, young person or their school or college asks the LA to carry out an EHC needs assessment, the LA must respond to the request within six weeks, confirming if they will or will not carry out the assessment.
If the LA refuses, the parent or young person must be informed and has the right to appeal to the Special Educational Needs and Disability Tribunal.
Once an LA agrees to carry out an EHC needs assessment, they must by law seek advice and information from a number of key professionals as part of the process. Based on the evidence they have gathered they must then decide whether or not they will issue an EHC plan for that child or young person.
Recent data released by the Department for Education (SFR 17/2016, 26 May 2016) states that during 2015 there were 39,950 requests for assessments for an EHC plan and that 10,935 of these requests were refused. Of the 29,015 children who were assessed, 96.2 per cent received an EHC plan (or statement). At January 2016, a further 9,965 children and young people were either still being assessed, or had completed the assessment but a decision had not yet been made whether to issue an EHC plan.
Clearly, we must question whether all of those who were refused an assessment had the correct legal test applied. It is essential to remember that the legal threshold for the assessment is low; if a parent believes that their child has SEN and needs special educational provision in accordance with an EHCP, the test is satisfied.
So, if you want to ensure your child’s special educational provision is provided for fully, taking into account his or her needs, I recommend that you request an education, health and care assessment.
Julie Moktadir is Chief Executive of IPSEA, a charity providing support, information and advice on legal issues to parents of children with SEN: